LESBIAN/GAY LAW NOTES
ISSN 8755-9021 May 1997
Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NY, NY 10013,
212-431-2156, fax 431-1804; e-mail: asleonard@aol.com or aleonard@nyls.edu
Contributing Writers: Otis Damslet, Esq., New York; Steven Kolodny, Esq., New York; Todd
V. Lamb, Esq., New York; Mark Major, Esq., New York; K. Jacob Ruppert, Esq., New York;
Dirk Williams, Esq., Boston; Charles Wertheimer, NY Law School Student; Robert Wintemute,
Esq., London, England.
Circulation: Daniel Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212-353-
9118; e-mail: le-gal@interport.net
LeGaL Homepage: http://www.interport.net:80/~le-gal
Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln
(C) 1997 by Lesbian & Gay Law Association of Greater New York
$45/yr by subscription; Foreign Rate US$60
Texas Appeals Court Finds Newspaper Not Liable For Gay Suicide
Granting the defendant's motion for summary judgment on April 16, the Texas Court of Appeals
ruled in Hogan v. The Hearst Corporation, 1997 WL 184108, that a newspaper bore no tort
liability for the suicide of a gay man whose name had been published in a report about a police
sweep of sexual activity in city parks. This appears to be one of the first attempts by the
survivors of an "outed" person who committed suicide to fix legal responsibility on a newspaper.
On June 2, 1994, the San Antonio Express-News ran an article about arrests made by the local
police department in various public parks for lewdness and indecent exposure. These arrests
were made by plain-clothes police officers, purportedly responding to public complaints about
sexual activity. The article included the names of those arrested under the title "List of suspects
from latest roundup." Benny Hogan, age 41, was listed as being arrested for "indecent
exposure." Shortly after the article was published, Hogan committed suicide.
The Hogan family (his mother, brothers and sisters) sued on behalf of his estate and on their
own behalf, claiming that Hogan was a closeted gay man who had been driven to suicide by the
newspaper's unwarranted "outing" of him. The estate claimed damages for invasion of privacy
and intentional infliction of emotional distress, and Hogan's mother claimed damages for
wrongful death. The trial court rejected all their claims. The court of appeals unanimously
affirmed in an opinion by Justice Paul W. Green.
While recognizing that an individual generally has a common law privacy right to be free from
public disclosure of embarrassing facts, Justice Green found that a newspaper has a First
Amendment right to publish facts that are a matter of public record. The newspaper never said
that Hogan was gay, merely reporting that he was arrested in the park for indecent exposure.
Accurate reporting of information released by the police was held not to violate any right of
privacy.
The court also rejected the Hogan estate's emotional distress claim. Damages for intentional
infliction of emotional distress are awarded when a defendant has engaged in outrageous
conduct, beyond all bounds of decency, that anyone would know would cause extreme emotional
distress. Here, the court emphasized that the newspaper was acting within its legal rights in
publishing the names of people arrested. "Although we express no opinion concerning whether
a newspaper, under these circumstances, should exercise its right to publish the names of
persons arrested for lewd conduct, we cannot conclude that a newspaper's otherwise lawful
conduct was `beyond all possible bounds of decency,' `atrocious, and utterly intolerable in a
civilized community,'" wrote Justice Green, quoting prior Texas cases establishing the legal tests
for an emotional distress claim.
Turning finally to the wrongful death claim on behalf of Hogan's mother (siblings can't sue for
wrongful death), the court found that a surviving parent, spouse or child can sue for wrongful
death only when the death was due to the wrongful act of the defendant. Here, the newspaper
was publishing truthful information of public interest, clearly covered by its First Amendment
rights, so it would not be appropriate to punish the newspaper by making it pay damages to Mrs.
Hogan because its action was not "wrongful."
This result should sound familiar in light of the recent ruling in Doe v. Daily News, N.Y.L.J.,
Feb. 6, 1997, p. 28, col. 6 (N.Y. Super. Ct., N.Y. Co., Feb. 5, 1997). a defamation case
brought by a Brooklyn lesbian, when Mike McAlary, a columnist for the News, reported that
sources in the police department believed the lesbian was faking a report that she had been raped
in a city park. Later investigation showed that her claim of being raped was true, but the court
ruled that the newspaper could not be liable for damages for accurately reporting what its police
department sources were saying.
In light of settled First Amendment principles, it seems that the problems of newspaper reporting
about lesbian/gay stories must be addressed as an issue of journalistic ethics rather than tort law.
Perhaps the emergence of an active Lesbian & Gay Journalists Association in the U.S., and
increasing awareness of lesbian and gay issues, may lead newspapers to conclude that the
newsworthiness of who is arrested during a police "sweep" of a gay cruising area is
counterbalanced by the extreme injury that may be suffered by those whose names are reported,
including loss of jobs and homes, loss of family members, and in extreme cases resulting in
suicide. A.S.L.
LESBIAN/GAY LEGAL NEWS
Florida Appeals Court Enforces Living-Together Agreement of Female Couple
When a court begins its opinion, "Emma...and Nancy...were close friends and more," good
things must surely follow. Thus begins a Florida Court of Appeals opinion enforcing a living
together agreement between two women. Posik v. Layton, 1997 WL 136208 (Fla. App. 5th
Dist., Mar. 27).
As a condition of following Nancy Layton to a different job in a different county, Emma Posik
insisted they execute an agreement which provided that, inter alia, Layton would make
substantial monthly payments of "liquidated damages" to Posik if the relationship ended. Four
years later, the parties broke up and Posik sued to enforce the agreement. A trial judge refused
to enforce the liquidated damages provision, feeling it amounted to a penalty because Posik's
actual damages (loss of employment and costs of relocation) were ascertainable. The Court of
Appeals disagreed and, calling the agreement a "nuptial" agreement between "live-ins," held that
it was enforceable.
The court studiously avoids the question of whether public policy proscribes the enforcement of
the parties' agreement: it interprets anti-gay and -lesbian adoption and marriage cases not to
prohibit the right of parties to create such obligations by contract. Florida's sodomy law is
simply never mentioned. The liquidated damages provision was enforceable, the court opined,
because Posik's damages included more than lost wages and moving expenses, and the liquidated
damages were reasonable under the circumstances. The monthly payments were less than Posik
had made in years before she entered the agreement and less than she would have received had
other long term provisions of the contract been performed, e.g., Layton's agreement to make
Posik the sole heir of all of her probate and non-probate assets.
The court interpreted several other provisions of the agreement in Posik's favor and concluded,
pithily, "Contracts can be dangerous to one's well-being. That is why they are kept away from
children. Perhaps warning labels should be attached. In any event, contracts should be taken
seriously." D.W.
9th Circuit Upholds Removal of Homophobic Clergyman from San Francisco Human Rights
Commission
On April 3, a panel of the U.S. Court of Appeals for the 9th Circuit unanimously upheld the
removal of a clergyman serving on the San Francisco Human Rights Commission because of
public statements he made condemning homosexuality as "a sin" and an "abomination against
God." Lumpkin vs. Brown, 1997 WL 152778. The court found that neither the First
Amendment nor the Religious Freedom Restoration Act requires San Francisco to tolerate
members of its Human Rights Commission who make public statements that are antithetical to
the Commission's official charge to eliminate prejudice and discrimination.
In 1993, the City of San Francisco removed Reverend Eugene Lumpkin, Pastor of the Ebenezer
Baptist Church, from his position as a member of the San Francisco Human Rights Commission
for publicly stating that "the homosexual lifestyle is an abomination against God. So I have to
preach that homosexuality is a sin" and, when asked by a television interviewer about a
statement in Leviticus that a man who slept with a man should be put to death, he said "[T]hat's
what God sayeth." Then-Mayor Frank Jordan, with full support from the Board of Supervisors,
swiftly removed Lumpkin from office stating that "no person will be allowed to serve in my
administration whose actions may be interpreted by some to encourage violence or give support
to others who seek to justify their hatred." However, he assured that he would never "ask that
a religious litmus test of beliefs be a part of the appointment process," but cautioned that "when
[religious] beliefs are volunteered in a way that negatively influences the operation of a state
function, or suggests a justification for actions which may lead to violence, I believe it crosses
the line between church and state."
Lumpkin sued the Mayor and the City, claiming that his removal violated his rights under the
First Amendment and the Religious Freedom Restoration Act of 1993 (42 U.S.C. sec.
2000bb-1). The district court granted summary judgment to the defendants, finding that the
City's action was justified because Lumpkin's public statements were inconsistent with his
"broad responsibilities for formulating, implementing and explaining [the] policy" of the
Commission and because his dismissal did not constitute governmental establishment of religion.
Writing for the court, Judge Norris applied the Pickering test used in balancing the speech right
of public officials and the interests of the government. Pickering vs. Board of Education, 391
U.S. 563 (1968). Here, the court weighed the City's interest in eliminating prejudice and
discrimination against Lumpkin's First Amendment interest in condemning homosexuality as a
sin while serving as a voting member of the Human Rights Commission. "[T]he City has not
only a legitimate, but a heightened expectation that its Human Rights Commissioners refrain
from speaking publicly in a way that mocks the City's anti-discrimination policy," wrote Norris.
The court further noted that Lumpkin's statements were much more newsworthy than if he had
been speaking solely as a private citizen, and held that the City's interest in having
commissioners who work to promote City policies far outweighs any commissioner's First
Amendment interest in publicly expressing views that subvert those policies.
Norris then turned to the claim under the Religious Freedom Restoration Act, which provides
that the "[g]overnment shall not substantially burden a person's exercise of religion" unless the
burden is "(1) in furtherance of a compelling governmental interest; and (2) is the least
restrictive means of furthering that compelling governmental interest." The court found that
preservation of the integrity of the City's anti-discrimination policies was a compelling
governmental interest and that Lumpkin's removal was "the only effective way to remedy the
damage his statements as a Commissioner wreaked on the credibility of those policies."
Last, the court addressed Lumpkin's claim that his removal violated the Establishment Clause
by endorsing a particular religious faith that interprets scripture "less literally" than Lumpkin.
However, all of the Mayor's statements regarding Lumpkin's removal were based on secular
principles, thus defeating Lumpkin's claim that his removal had the impermissible primary effect
of promoting any particular religious faith. Vernon vs. City of Los Angeles, 27 F.3d 1385 (9th
Cir.1994).
Lumpkin's lawyer, James Struck of the Rutherford Institute, a conservative religious-liberties
organization, states he will appeal because the opinion "shows complete intolerance for religious
beliefs that are widely held." K.J.R.
Minnesota Appeals Court Upholds Bias Statute in Anti-Gay Harassment Case
In State of Minnesota v. Machholz, 1997 WL 131092 (Minn. App. March 25), the court
affirmed the constitutionality of the state's harassment statute and the felony enhancement
provision of the state's bias-motivated harassment statute. Both had been ruled unconstitutional
at pretrial criminal proceedings.
Kurtis Machholz, a self-described "horseback evangelist," was charged with felony harassment
for disrupting a rally in support of "National Coming Out Day" in Rochester, Minnesota. The
criminal complaint alleged that he rode his horse through the crowd, swinging his reins at people
in the crowd several times, knocked down the group's sign, and yelled various accusations at
the group. In his statement to the police, Machholz admitted swinging the reins to knock over
the sign, but denied swinging it at people. He admitted riding through the crowd to "disperse
'em a bit," and said he told them that they were "going against natural law," that they should
repent, that they were responsible for AIDS, that they were corrupting children, and that there
were no homosexuals in heaven. He then denied intent to disperse the group.
Machholz moved to dismiss the complaint. The trial court granted the motion to dismiss, ruling
that the definition of harassing conduct was unconstitutionally vague, and that the provision
relating to enhancement making bias-related harassment a felony was overbroad.
Machholz was charged under Minn. Stat. sec. 609.749 subd. 2(7) (1996), which makes it a
criminal offense when one engages in any harassing conduct that interferes with another person
or intrudes on the person's privacy or liberty. "Harassing conduct" is defined as intentional
conduct committed in a manner that would cause a reasonable person under the circumstances
to feel oppressed persecuted or intimidated, and does cause this reaction on the part of the
person.
A penal statute is unconstitutionally vague if it does not define the offense so that ordinary
people can understand what conduct is prohibited and if it encourages arbitrary and
discriminatory enforcement. The defendant who makes such a claim must show that the statute
is vague with respect to his or her own conduct. The Minnesota Supreme Court recently
construed the statute to require specific intent, in part to avoid ruling the harassment statute
unconstitutionally vague.
The Court of Appeals ruled that the statute clearly applied to
Machholz's conduct. The court found that riding a horse through a
crowd in order to disperse it, swinging reins so as to knock over an easel, and shouting
denunciations at the crowd would clearly cause ordinary people in the crowd to feel "oppressed,
persecuted or intimidated."
Machholz argued that the statute was overbroad, because it could
infringe on ordinary expression of political views, the expression of which might happen to
cause others to feel persecuted or oppressed. The court rejected this argument, distinguishing
speech which others might find unpleasant or challenging on account of subject matter or such.
The court pointed to associated language referring to "persecut[ion]" and "intimidat[ion]." The
conduct and language intended to be covered would be in the nature of "fighting words," which
enjoy no First Amendment protection.
The Court of Appeals also rejected the trial court's finding that the felony enhancement
provision of the harassment statute was overbroad. Minn. Stat. sec. 609.749 subd. 3(1) (1996)
makes harassing conduct a felony if it was committed on account of the victim's actual or
perceived race, color, sex, sexual orientation, disability or national origin. The U.S. Supreme
Court had stricken down statues which criminalized bias motivated speech or conduct, but had
upheld the constitutionality of statutes which enhanced punishment based on the motivation of
the speaker or actor. The Court of Appeals ruled that this was clearly a statute which fell into
the latter category. S.K.
Illinois Appeals Court Upholds Marital Status Discrimination Claim in Dispute With Religious
Landlord
In a decision having significance for same-sex couples, the Appellate Court of Illinois held that
a landlord who refused to rent a vacant apartment to an unmarried, cohabiting opposite-sex
couple violated Chicago's Fair Housing Regulations. In Jasniowski v. Rushing, 1997 WL 144866
(Ill. App. Ct., March 31), Justice Mary Jane Theis, writing for the court, ruled that defendant
Ron Jasniowski had discriminated against Benson Rushing and Mary Tews on the basis of their
marital status by demanding a marriage certificate before he would rent a vacant apartment to
them.
Citing case law, defendant Jasniowski argued that since landlords were not bound by the
prohibition against marital status discrimination in the Illinois Human Rights Act, they should
likewise be exempt from the similarly-worded Chicago ordinance. The court distinguished the
claim in question from previous decisions which had relied on an anti-fornication statute.
Because the Illinois legislature has decriminalized cohabitation, the court reasoned the prior
rulings were not controlling in Rushing's case.
Jasniowski further asserted that renting the apartment to the unmarried, cohabiting, couple would
offend his sincerely held religious belief prohibiting sexual relations outside marriage. Jasniowski
maintained that the Chicago ordinance, as a burden to his free exercise of religion, was in
violation of the Religious Freedom Restoration Act of 1993 (RFRA). The RFRA provides that
the government "shall not substantially burden a person's exercise of religion even if the burden
results from a law of general applicability" unless it is to further a compelling state interest and
drawn in the least restrictive means.
Relying on the "substantial burden" test as established in Wisconsin v. Yoder, 406 U.S. 205
(1972) and Sherbert v. Verner, 374 U.S. 398 (1963), the court found that the enforcement of
the Chicago ordinance imposed a substantial burden upon the defendant. However, the court
also determined that Chicago had a compelling interest in prohibiting housing discrimination
against unmarried, cohabiting couples and that the ordinance is the least restrictive means for
the government to accomplish this end. The court concluded that adding plaintiff's Rushing "full
and equal" right to housing tips the balance in favor of the state.
The dissent argued that there was no controversy since Rushing did not formally apply for the
apartment once Jasniowski requested a marriage certificate. The dissent also maintained that
unmarried, cohabiting couples were not intended to be protected by the Chicago ordinance, as
evidenced by the City Council enactment of an anti-fornication statute. Finally, the dissent
asserted that under the RFRA the burden on Jasniowski's free exercise outweighs any compelling
governmental interest in Rushing's access to housing. C.W.
Alaska Appeals Court Rules Evidence of Lesbian Relationship Admissible in Spousal Abuse
Case
The Court of Appeals of Alaska overturned an assault conviction in a spousal abuse case, ruling
that the defendant should have been allowed to introduce evidence that his wife was having an
affair with a prosecution witness. McIntyre v. State, 1997 WL 139431 (March 28).
A jury convicted Jon McIntyre of assaulting his wife, L.M. At trial, L.M. testified that her
husband had assaulted her, choked her, and threatened to kill her outside the home of S.D., a
female friend of the couple. S.D. corroborated L.M.'s story, and stated that she was not biased
because, as a friend of both spouses, she would not lie for either against the other. Outside the
presence of the jury, McIntyre offered to testify that he had seen L.M. and S.D. kissing, and
sought to show S.D. was biased in favor of L.M. due to a romantic link between them. The
prosecution contended (1) that S.D. was heterosexual and (2) that allowing evidence that L.M.
was bisexual would prejudice the jury against her. The trial court sided with the prosecution,
ruling that the danger of unfair prejudice outweighed the probative value of the evidence.
In an opinion by Judge Coats, the appeals court reversed. "The
bias of a witness toward a party is always relevant. . . . If a witness has a romantic relationship
with a party . . . that fact is clearly a source of potential bias; the jury should be aware of such
evidence in order to fully evaluate the witness's testimony. This is true regardless of whether
the witness and the party are of the same sex or of opposite sexes." Coats cautioned that "the
proponent of such evidence is not entitled to present baseless accusations or unfounded
speculation," ruling that McIntyre's testimony would have established the necessary foundation.
O.R.D.
Same-Sex Marriage Developments
Hawaii legislators struck a deal on April 16 to break the deadlock between the state Senate and
House over a constitutional amendment about same-sex marriage. Assuming votes scheduled
for late in April went as planned, a measure will be placed on the November 1998 general
election ballot asking Hawaii voters if they want to amend their state constitution so as to permit
the legislature to decide to restrict marriage to opposite sex couples. (The Amendment will not
permanently ban same-sex marriage, because the Senate refused to go along with that.) The
other part of the compromise is that negotiators for both houses reached agreement on a
domestic partnership proposal that will be called "reciprocal beneficiaries," which will accord
same-sex couples most of the rights of married couples under state law. State tax rules will not
be affected, but inheritance rights, public employee benefits, and many other aspects of state law
will be adjusted to recognize same-sex partners. (Short of authorizing same-sex marriage, the
state could not theoretically affect any rights available to married couples under federal law, and
the federal Defense of Marriage Act of 1996 provides that same-sex couples married under state
law would not be entitled to federal recognition for their marriage for any purpose).
The reciprocal beneficiaries bill, if passed by both houses and signed by the Governor, would
go into effect July 1, 1997. The scheduling of votes on the two measures suggested that Senate
leaders would hold off approving the constitutional amendment ballot measure until after the
House and the Governor approved the reciprocal beneficiaries measure, although no formal
announcement was made to this effect. The Senate approved the reciprocal beneficiaries
measure, HB 118, on April 21 by a 22-3 vote.
Baehr v. Miike, the same-sex marriage court case, is now before the Hawaii Supreme Court, and
is expected to be argued later this year, with a decision possible before the November 1998
election, although it is also likely that the Attorney General will petition the court to delay ruling
until after the public has voted.
An attempt to place a proposed constitutional amendment against same-sex marriage on the ballot
in Louisiana failed by two votes to achieve the necessary two-thirds majority in the State Senate,
and several other anti-same-sex marriage bills died in other legislatures during April, according
to a press release distributed April 22 by Louisiana Electorate of Gays and Lesbians, Inc., a
lobbying group. In the state of Washington, the Senate amended a pending anti-same-sex
marriage measure to remove the requirement for a public referendum on the issue; Gov. Locke
had successfully vetoed a previous bill on the subject. However, Montana enacted a same-sex
marriage ban, becoming the 22nd state to do so. In Colorado, a legislative conference
committee appeared to reach agreement late in April on an anti-same-sex marriage bill that Gov.
Romer seemed likely to sign. Bills are still pending in many other states. A.S.L.
Domestic Partnership News Briefs
The power of San Francisco's ordinance requiring city contractors to include domestic
partnership benefits in their employee benefit plans was demonstrated early in April as the San
Francisco 49ers National Football League Franchise became the first major league sports
operation in the U.S. to adopt a domestic partnership policy. Cynics claimed the move was
undertaken to gain gay community votes for two ballot measures authorizing construction of a
large sports/commercial complex, to be constructed by the 49ers parent company, DeBartolo
Entertainment. DeBartolo announced that it would also introduce a domestic partnership plan
for its employees. The 49ers joined Bank of America and the Roman Catholic Archdiocese of
San Francisco as symbolically important employers who have extended benefits (sometimes
under different nomenclature than domestic partnership) in order to comply with the city
ordinance. * * * The San Francisco Board of Supervisors has been considering a proposal to
cut back the requirement of the ordinance, mandating benefits only for same-sex couples, in
order to make compliance less expensive. However, a scheduled vote on this proposal brought
such an outpouring of opposition on behalf of unmarried opposite-sex couples that the vote was
delayed.
Last year, Michigan enacted a law that reduces state financial assistance to state universities by
the amount the universities spend for domestic partnership coverage. On April 11, Michigan
Attorney General Frank Kelley announced his ruling that the measure could not be applied to
the only two schools in the state that currently have such benefit programs, University of
Michigan and Wayne State University. Kelley said that the state Constitution gives these
universities autonomy to set their own policies. Under Michigan law, Kelley's opinion will
stand unless it is overruled by a court, and the state gave no immediate indication whether it
would seek judicial review. UM currently spends $160,000 out of a total benefits budget of
$295 million to cover 80 partners of its employees, while Wayne State spends $17,000 to cover
12 same-sex partners. Kelley's decision does not apply to community colleges, which are not
covered by the constitutional provision. A spokesperson for the legislative sponsor of the
measure, State Sen. Bill Schuette (R-Midland), criticized Kelley's ruling, arguing that the
autonomy measure was intended only to preserve academic freedom. Detroit Free Press, April
12.
The County Board for Arlington County, Virginia, voted April 12 to extend health and dental
benefit eligibility to the domestic partners (and children of domestic partners) of county
employees. All domestic partners or adult dependents will be eligible for benefits on the same
basis as legal spouses, without regard to gender. This is a first for Virginia! Washington Blade,
April 18.
The Pittsburgh, Pennsylvania, Human Relations Commission has found probable cause to believe
that the University of Pittsburgh violated a city ordinance banning sexual orientation
discrimination when it rejected an attempt by Chris Henson, a lesbian former employee, to
secure benefits coverage for her domestic partner. The Commission concluded that the
University's action "has resulted in disparate treatment [for homosexual employees] in
comparison to heterosexual employees." Henson, who had been an instructor at the law school,
left the University to take a clerkship with the Louisiana Supreme Court. The University's
trustees voted in 1993 to extend recognition to same-sex domestic partners for some purposes,
but not for health insurance. Henson will continue to press her claim, arguing that current
employees may benefit and that she has damages as a result of the University's benefits refusal
in her case. Pittsburgh Post-Gazette, April 18; Posting to the Domestic Partnership Listserve.
The Colorado Senate voted 17-16 on April 17 to defeat a bill that would have prohibited colleges
and universities in the state from adopting domestic partnership benefits plans for their
employees. (On the same date, the Senate voted 18-16 in favor of a bias crimes bill that add
sexual orientation, age and disability to the categories already covered by the state's bias law.)
Rocky Mountain News, April 18.
Rev. Hiram Crawford, Sr. and four other co-plaintiffs filed suit in Cook County, Illinois, Circuit
Court on April 18, seeking a declaration that the city of Chicago acted beyond its legislative
authority by passing an ordinance extending medical and dental benefits to the domestic partners
of city employees. Chicago Tribune, April 19. Such lawsuits have actually succeeded in getting
domestic partnership ordinances invalidated in other states, usually on an argument that the
municipality does not have authority to expand the definition of family, which is considered a
matter of state law. A.S.L.
Civilian Military Employee Loses Job Under `Don't Ask, Don't Tell' Policy
The U.S. District Court for the Eastern District of Pennsylvania denied John Hoffman's motion
for a preliminary injunction requiring his reinstatement in the civilian position of Air Force
Reserve Technician (ART), despite District Judge Joseph L. McGlynn, Jr.'s finding that
Hoffman's homosexuality did not adversely affect the performance of his duties, that other ARTs
whose military obligations ended had been retained, and that Hoffman had been unable to find
employment and was in "dire financial straits." Hoffman v. U.S., 1997 WL 136418 (Mar. 24).
Hoffman was on active duty in the Air Force from 1963 to 1969, serving during the Vietnam
conflict. For 10 years, while working as a Philadelphia police officer, and 11 years after, he
was a voluntary active status Air Force Reservist. Hoffman worked at the Willow Grove Air
Force Reserve Station for those 11 years: 3 as an aircraft mechanic and 7 as an ART, and held
the military rank of Technical Sergeant. AFRES Regulation 40-2 requires ARTs to have Active
Reserve membership. As an ART, Hoffman was mobilized and deployed for Operation Desert
Storm/Desert Shield. Hoffman has been awarded 12 medals and commendations with 9 devices
for good conduct and meritorious service in various situations.
In 1995 Hoffman told his civilian supervisor and military superior, Patrick Moore, that he is "a
homosexual." Moore reported Hoffman's statement to their military superiors. On April 24,
1996, Hoffman received notice that an administrative action had been initiated to remove him
from the active reserves because of homosexual conduct. The notice recited Hoffman's rights:
to consult counsel and request a hearing to challenge the proposed Administrative Discharge, or
to request transfer to the Retired Reserve. Hoffman opted to request, and was approved for
transfer to, the Retired Reserve. Moore then issued a notice to Hoffman, proposing to remove
him from his ART position for failure to maintain active membership in the AF Reserve.
Hoffman was removed from federal employment on July 20, 1996; his removal was affirmed
by a Merit Systems Protection Board (MSPB) administrative law judge on appeal. Hoffman
currently has a Petition for Review of the decision pending before the MSPB.
Hoffman made two arguments to the District Court. First, the
"Don't Ask, Don't Tell" policy, 10 U.S.C. sec. 654 and its
implementing Directives and Regulations, is an impermissible abridgment of the right of free
speech. Second, that the disparity of treatment violates the Equal Protection Clause of the Fifth
Amendment because there is no rational basis for it.
The Act provides that a member of the armed forces will be separated if he or she "stated that
he or she is a homosexual . . ., or words to that effect, unless. . . [he or she] demonstrate[s]
that he or she is not a person who engages in, attempts to engage in, has a propensity to engage
in, or intends to engage in homosexual acts." Citing Able v. U.S., 88 F.3d 1280 (2d Cir.1996),
Steffan v. Perry, 41 F.3d 677 (D.C.Cir.1994) (en banc), Pruitt v. Cheney, 963 F.2d 1160 (9th
Cir.1991), and Ben-Shalom v. Marsh, 881 F.2d 454 (7th Cir.1989), the judge concluded that
a member's statement that he or she is a homosexual gives rise to an evidentiary presumption
that the member is likely to engage in homosexual acts, and therefore "the Act withstands First
Amendment scrutiny, including Equal Protection Analysis." Specifically, the evidentiary
presumption substantially furthers the government's interest in preventing homosexual acts in
the military and is no more restrictive than necessary to achieve this goal. "[M]embers of the
armed services have never possessed all the First Amendment rights of the civilian population,"
wrote the court, citing Thomasson v. Perry, 80 F.3d 915 (4th Cir. 1996).
Judge McGlynn concludes that the Act and DoD Directive 1332.14,
"Enlisted Administrative Separations," apply to Hoffman's "hybrid" position as an ART because
he performed both military and civilian duties. ARTs who lose their reserve memberships "for
reasons within their control" are to be separated from their civilian position immediately without
priority consideration for other positions. ARTs who lose their memberships for reasons "beyond
the individual's control" may be
retained as "status quo" employees pending efforts to place the ART in another position. Judge
McGlynn held that Hoffman's decision to transfer to inactive reserve status was voluntary,
notwithstanding the pending removal proceedings. Thus the denial of "status quo" treatment was
not in retaliation for his homosexual self-identification, and is consistent with First Amendment
standards. The judge also cited three cases demonstrating that Hoffman would not have
succeeded with a right-to-privacy argument.
Matt Coles, Director of the ACLU Gay & Lesbian Rights Project, and four private attorneys
from Philadelphia, Franklin Poul, Stefan Presser, Gloria M. Gilman, and Seth Kreimer,
represent Hoffman, who plans to appeal. M.M.
N.J. Federal Court Refuses to Dismiss Same-Sex Harassment Suit
Ruling on a question of first impression in the federal courts in New Jersey, Judge Irenas held
in Caldwell v. KFC Corporation, 1997 WL 141856 (March 25), that a complaint by a
heterosexual male employee about sexual harassment by a gay male supervisor stated a claim
under Title VII of the Civil Rights Act of 1964 as sex discrimination. The 3rd Circuit has yet
to rule on this issue, as to which other circuits and many district courts are divided. The U.S.
Supreme Court has asked to Clinton Administration to file a brief concerning a pending
certiorari petition in a case from the 5th Circuit, Oncale v. Sundowner Offshore Services, Inc.,
83 F.3d 118 (1996), which held that same-sex harassment is never actionable under Title VII.
Judge Irenas asserted that "nothing in the Civil Rights Act suggests that Congress intended Title
VII's protections to apply only to persons who are harassed by members of the opposite sex,"
and found persuasive the EEOC's position that such harassment is covered. The court also noted
precedent for an "expansive reading of Title VII", and quoted with approval a comment by a
Louisiana district court that finding same-sex harassment never to be actionable would effectively
"exempt homosexuals from the very laws that govern the workplace conduct of heterosexuals,"
quoting Pritchett v. Sizeler Real Estate Mgt. Co., 1995 WL 241855 (E.D.La. 1995).
Irenas also refused to dismiss a supplementary state law claim, noting that the New Jersey
Supreme Court, in Lehmann v. Toys 'R' Us, Inc., 626 A.2d 455 (1993), had specifically
commented that the state's antidiscrimination law "protects both men and women and bars both
heterosexual and homosexual harassment."
However, Irenas dismissed a supplementary battery claim, finding that such a claim could not
be asserted against the employer based on the unauthorized conduct of a gay male supervisor,
and dismissed a wrongful-discharge claim based on precedent that the state's antidiscrimination
law supplants the common law claim in this case.
The court dismissed Caldwell's claims for individual liability under Title VII, but found that a
claim for individual liability against the gay supervisor could be made under the state
antidiscrimination law. The court also dismissed the defendants' motion to compel arbitration.
* * * In another case from within the 3rd Circuit, U.S. District Judge Huyett (E.D.Pa.) refused
to grant summary judgment to the employer in a same-sex harassment case on Feb. 28.
Eschback v. County of Lehigh, 1997 WL 109611. The complaint alleged that a female
supervisor was abusive and harassing toward female employees (including the plaintiff) but not
male employees, and made gender-specific remarks. For example, she was quoted as stating
that she liked a male worker better than a female worker "because he has a dick and you don't."
Well, that's blunt and to the point! A.S.L.
Kansas Federal Court Refuses to Dismiss Harassment Claims by Male Employee Subjected to
Homophobic Taunts
In Blake v. Grede Foundries, Inc., 1997 WL 157126 (March 20) (not officially reported), U.S.
District Judge Marten (D.Kans.) denied a motion to dismiss claims under Title VII of the Civil
Rights Act (disparate treatment and hostile environment sexual harassment), Title I of the ADA,
and the Kansas Act Against Discrimination brought by Bradley Blake, a man formerly employed
as a receptionist by Grede Foundries. Blake also asserted state common law claims that are not
addressed in this opinion.
Blake alleged that he was subjected to harassment by other employees because he was a man
occupying a job traditionally held by women. The harassment included comments such as
"Where's your skirt and pantyhose", "Where's your dress," and "Where's your purse," and
gestures at Blade suggesting he was gay. Blake also claimed he was not permitted to take
restroom breaks similar to those afforded female officer workers, and was expected to engage
in physical confrontations with irate customers, unlike women receptionists. As a result of the
harassment, Blade developed clinical depression. He also suffered back spasms, which the
employer refused to accommodate at Blake's request by providing a reasonable break schedule
and supportive office furniture.
Grede moved to dismiss the statutory claims. Rejecting the motion, Marten found that Blake
had clearly stated prima facie cases of disparate treatment on the basis of sex under Title VII
and the Kansas Act, and failure to provide reasonable accommodation of a disability under ADA
and the Kansas Act.
As to the sexual harassment claim, Marten rejected Grede's argument that Blake was actually
asserting a claim of discrimination based on perceived sexual orientation -- a type of claim that
has been dismissed by other federal courts on the ground that Title VII does not ban sexual
orientation discrimination. Grede cited Quick v. Donaldson Co., 895 F.Supp. 1288 (S.D.Iowa
1995), for the proposition that male employees may not bring hostile environment sexual
harassment claims. Unfortunately for Grede, the 8th Circuit reversed Quick, 90 F.3d 1372
(1996). In any event, Marten rejected Grede's attempt to mischaracterize Blake's complaint.
"Blake does not allege discrimination based on sexual orientation. Blake cites harassment in the
form of gestures suggesting homosexuality because he was a male working in a traditionally
female position. This is not the only, or even the most significant, allegation Blake makes in
support of his disparate treatment claim."
Finding that Blake had alleged that the employer had done nothing to address the harassment
problem after Blake repeatedly complained about it, Marten concluded that Blake had adequately
pled a cause of action for hostile environment harassment. A.S.L.
Washington Appeals Court Affirms Conviction for Violating Hate Crimes Statute
In State v. Beaird, 1997 WL 176422 (Wash.App. April 11)(unpublished), the Washington Court
of Appeals affirmed the conviction of Adam A. Beaird for fourth degree assault and violation
of the Olympia, Washington, Hate Crime Ordinance, which specifically applies to anti-gay bias.
"On April 6, 1995, Beaird was riding in a car with his friends Julian, Jordan, and Duff. As
they drove past Schaefer, Clayton, and Jenny Greenlee, Beaird said to his friends, "I think those
guys are gay." Jordan, the driver, taunted Schaefer and Clayton, shouting "Are you guys gay?
Are you guys fags?" The victims ignored the taunts and kept walking. The four boys
confronted the victims moments later on the grounds of Olympia High School. Again Jordan
taunted them asking, "Do you guys want to fight?" When the victims refused, Jordan and Julian
threw Schaefer to the ground and kicked him in the head and face. Beaird and Duff took
positions on either side of Clayton blocking his escape. When they finished with Schaefer,
Julian and Jordan assaulted Clayton."
Appealing his conviction, Beaird asserted technical objections to his prosecution that were
readily dismissed by the court. Beaird also challenged the sufficiency of the evidence to
implicate him in the assaults on the victims. Writing for the court, Judge Houghton listed five
items of evidence supporting the verdict: "(1) Beaird said `I think those guys are gay;' (2) Beaird
got out of the care with the other boys and approached Schaefer, Clayton and Greenlee; (3)
During the assault on Schaefer, Beaird and Duff `went up toward where Bill [Clayton] was . .
. and they stood on either side of him;' (4) Clayton could not escape because Beaird and Duff
`were blocking his path;' and (5) Beaird `had his arms out . . . as if to keep [Clayton] in the
same place.' Based upon these facts, a rational trier of fact could find beyond a reasonable
doubt that Beaird aided and encouraged the assault on Clayton and Schaefer." A.S.L.
Texas Appeals Court Rejects Conspiracy Theory in Restroom Arrest
On March 31, the Court of Appeals of Texas declined to reverse the decision of the district court
convicting Daniel Edward Jackman of public lewdness in an opinion by Justice Kinkeade.
Jackman v. State, 1997 WL 142745.
On November 22, 1991, Jackman was arrested in a public restroom in West Rock Lake in
Dallas, Texas, after Jackman was observed with his penis in the mouth of another man. Jackman
emphatically denied the incident and even had a doctor testify that Jackman was heterosexual and
that this type of behavior was inconsistent with
heterosexuality. Jackman was first tried in June, 1994, resulting in a mistrial. The instant
decision stems from the appeal after a verdict in favor of the State in the second trial.
On appeal, Jackman raised eleven points of error. Most of these points of error were procedural
and the Court of Appeals affirmed the trial court on all of them. In his eleventh point, Jackman
argued that the trial court erred in not allowing him to present conspiracy evidence. Jackman
maintained that he had successfully sued the City of Dallas, his employer, before the incident
at West Rock Lake, and the City thereafter retaliated. Jackman argued that the City's goal was
to terminate his employment. He testified that he was instructed by his supervisor to go to this
particular bathroom precisely at 3:00 p.m., that his supervisor knew that the restroom was a
common cruising area for homosexuals, and that the supervisor had arranged for the officer to
be there to arrest Jackman as part of a conspiracy to get back at him for suing the City. The
court found that the link to a possible conspiracy was tenuous at best and refused to reverse on
this ground. The conviction was affirmed. T.V.L.
Minnesota Appeals Court Dismisses Sexual Orientation Harassment Claim on Technical Grounds
A heterosexual woman who claimed she was suffering harassment based on her sexual
orientation lost her day in court, when the Minnesota Court of Appeals dismissed her claims
under state and municipal laws on April 1. Fiecke v. Ascension Place, 1997 WL 147441.
Fiecke had asserted claims under the Minnesota Human Rights Act, which forbids sexual
orientation discrimination, and the Minneapolis Human Rights Ordinance, which has a similar
provision. Unfortunately for Fiecke, she slipped up on two accounts. First, the incidents giving
rise to her complaint predated the 1993 amendment adding "sexual orientation" to the state law.
Second, the district court in which she filed her complaint lacked jurisdiction over the action,
according to the Court of Appeals, because the city of Minneapolis did not have legislative
power to create an original cause of action in the state trial court. Fiecke should have pursued
a claim before the city human rights commission and, if not satisfied at the disposition, sought
administrative review under the state's administrative procedure act. A.S.L.
Lesbian Couple Wins Judicial Approval of Agreement Ex-Husband of One Partner Was Not
Father of Their Child Conceived Through Donor Insemination
In an unreported decision, N.Y. Supreme Court Justice Edward W. McCarty, III, approved a
divorce settlement in Lotito v. Lotito, No. 34965/95 (Nassau County, Nov. 15, 1996), under
which a child of the wife, conceived through alternative insemination while the parties were
separated and the wife was living with a lesbian partner, is declared not to be the legal child of
the husband.
Joseph and Judith Lotito had been separated but not legally divorced when Judith and her lesbian
partner decided they wanted to have a child and then a second-parent adoption. Judith conceived
through donor insemination with the assistance of a doctor, but without notifying or securing
permission from her husband and unaware that under the law a child born to her while she was
legally married could be presumed to be the offspring of her husband. When Judith and her
partner sought legal assistance for the second-parent adoption by Judith's partner, they learned
for the first time that Joseph Lotito might be considered the legal father whose permission could
be needed. Judith then filed for divorce, and as part of the divorce negotiations, concluded an
agreement under which the child would not be treated as Joseph's offspring. The findings of
fact approved by Justice McCarty do not recite all this detail, but tersely state, in seeming
contradiction: "That there was no issue born of this marriage and the child that was born on
August 16, 1996, will not be deemed as a child of this marriage." The parties' settlement
agreement is incorporated by reference but not merged into the divorce decree. Now that the
divorce is final, Judith and her partner are proceeding with the adoption proceeding.
Judith is represented by attorney Judith E. Stone of Merrick, N.Y. We thank Ms. Stone for
bringing this unpublished decision to our attention and securing her client's permission for it to
be discussed in this published format. A.S.L.
Defense Department Issues Regulations Under Solomon Amendment
In recent years, U.S. Rep. Gerald Solomon (R.-N.Y.) has repeated an annual ritual of attaching
to Defense appropriations bills an amendment barring federal financial assistance to any
institution of higher education that excludes military recruiters or ROTC units from its campus.
In the Fiscal Year 1997 appropriations bill passed last fall, 110 Stat. 3009, Solomon's
amendment went further, extending the ban to financial assistance from appropriations for the
departments of Defense, Transportation, Labor, Health and Human Services, Education, and
Related Agencies. Where previously the only money a university would forfeit would be
Defense contract money, now the range of forfeiture could be quite extensive, including grants
for medical research and perhaps even student loans. Most schools that have banned ROTC or
military recruiters in recent years have done so in response to the anti-gay policies of the
military. The fiscal requirements of the new Solomon Amendment are effective July 1, 1997.
On April 8, the Defense Department published in the Federal Register an "interim rule" to cover
operation of the newest Solomon Amendment. The rule will be published at 32 C.F.R. Part
216, and can be found in 62 Fed.Reg. 16691, 1997 Westlaw 158914 (F.R.).
The rule appears to preserve the unit exemption concept, under which only the particular unit
of a university that excludes the military would be subject to the funding ban. The rule
addresses the Defense Department's role in determining whether a school comes within the terms
of the Amendment. Schools that have a "long-standing policy of pacifism based on historical
religious affiliation" may exclude the military without suffering adverse financial consequences.
Also, schools can decline to schedule on-campus interviewing for military recruiters if they have
offered students the opportunity for interviews but "too few students have expressed an interest
to warrant accommodating military recruiters, applying the same criteria that are applicable to
other employers." There is also an exemption from the Amendment, which will expire on
March 29, 1998, for any school that is prohibited by state law or order of a state court from
allowing Federal military recruiting on campus; this apparently responds to a court ruling
barring the military from the University of Connecticut Law School. The rule does not
explicitly address whether military personnel attending school using military scholarships will
forfeit the scholarships.
Although the interim rule does not purport to speak for other agencies involved in implementing
the Solomon Amendment, introductory comments include a paragraph indicating that the
Department of Education has preliminarily determined that "funds under the Federal Pell Grant
Program (Title IV, Part A, Subpart 1), the Federal Family Education Loan Program (Title IV,
Part B), and the Federal Direct Student Loan Program (Title IV, Part D) are not affected
because funds under these programs are not provided by grant or contract to a covered school,
but are funds provided to the student recipients." The Education Department hasn't decided yet
whether Solomon affects the Federal Supplemental Educational Opportunity Grant Program, the
Federal Work-Study Program, and the Federal Perkins Loan Program. The comment notes that
the Education Department "will separately communicate as soon as possible on whether the
Campus-based programs are affected."
Comments on the interim rule can be directed to the Director for Accession Policy, Office of
the Assistant Secretary of Defense for Force Management Policy, 4000 Defense Pentagon,
Washington DC 20301-4000. Comments must be received by July 7, 1997. A.S.L.
Defense Department Issues Memorandum on Anti-Gay Harassment and Lesbian-Baiting
Responding to criticism in the Servicemembers Legal Defense Network's Third Annual Report
on the so-called "don't ask, don't tell, don't pursue" military policy, as well as long-standing
efforts by U.S. Rep. Barney Frank, the U.S. Department of Defense issued a memorandum by
Under Secretary of Defense Edward Dorn on March 24, instructing military commanders that
reports of sexual harassment should not be used as a pretext to investigate the sexual orientation
or activities of the complainant. SLDN had commented that military members fear reporting
sexual harassment, because their assailants routinely accuse them of being gay or lesbian,
switching the focus of the investigation to them.
According to the memorandum: "This guidance is issued because of information we have
received that some service members have been threatened with being reported as homosexual
after they rebuffed sexual advances or themselves reported acts of sexual misconduct by others.
The information also indicates some service members reported threats of harm to their person
or property based upon perceived homosexual orientation. . . The report of such a threat should
result in the prompt investigation of the threat itself. Investigators should not solicit allegations
concerning the sexual orientation or homosexual conduct of the threatened person. . . Service
members should be able to report crimes free from fear of harm, reprisal, or inappropriate or
inadequate governmental response."
Suit Challenges Post-Mortem Homophobia
Lambda Legal Defense & Education Fund has filed suit in the U.S. District Court for the
Eastern District of Pennsylvania, contesting a refusal by a Jewish cemetery to place an
inscription on a headstone that acknowledges the relationship of the deceased to her lesbian life-
partner. Barone v. Har Jehuda Cemetery (complaint filed April 15, 1997).
Sherry Barone and Cynthia Friedman, a lesbian Jewish couple, were both Philadelphia natives
who moved together to Los Angeles and had been together 13 years when Friedman died from
cancer. After her cancer diagnosis in 1989, Friedman did extensive legal preparation to ensure
that Barone would be able to make binding decisions on her behalf. During their preparatory
discussions, Friedman indicated she wanted her headstone to include the following inscription:
"Beloved life partner, daughter, granddaughter, sister, and aunt." Barrone bought adjoining
plots for the couple in Har Jehuda Cemetery in Upper Darby, Pennsylvania. However, the
cemetery is refusing to allow installation of the headstone, maintaining that because Friedman's
parents object to the inscription, the cemetery cannot install the headstone without a court order.
The diversity action alleges breach of contract and infliction of emotional distress, as well as
seeking an order that the cemetery install the headstone as per Barone's directions. Lambda
Press Release, April 15. A.S.L.
Law & Society Notes
During the 1992 presidential election, the Christian Action Network (CAN) broadcast a
commercial recounting Bill Clinton's and Al Gore's position on gay rights issues. After the
election, the Federal Election Commission (FEC) brought an action against CAN, claiming that
the commercial violated 2 U.S.C. sec. 441b(a), which forbids corporations from financing
communications advocating the election or defeat of specific candidates. The FEC argued that
even though the commercial did not expressly urge viewers to vote against Clinton/Gore, it was
broadcast for that purpose in light of the context. Both the U.S. District Court in Virginia and
the 4th Circuit, en banc, concluded, on the authority of two U.S. Supreme Court cases, that
there was no merit to the FEC's case, and that CAN's broadcast was protected by the First
Amendment. In Federal Election Commission v. Christian Action Network, Inc., 1997 WL
157269 (April 7), ruling on an application by CAN for attorneys fees and costs in defending the
action, a 4th Circuit panel came close to charging the FEC with having proceeded against CAN
in bad faith, stating its conclusion that "the Commission's position, if not assumed in bad faith,
was at least not `substantially justified' within the meaning of 28 U.S.C. sec. 2412(d)(1)(A), and
therefore that the Christian Action Network is entitled to the requested fees and costs under the
Equal Access to Justice Act."
The U.S. Supreme Court announced March 31 that it denied certiorari in Presbytery of New
Jersey v. Whitman, No. 96-1156 (1997 WL 28706), 99 F.3d 101 (3rd Cir. 1996), a decision
rejecting a constitutional challenge to New Jersey's sexual orientation discrimination law. A
minister of the church claimed that the requirements of the law violated his First Amendment
right to speak out against the sin of homosexuality. The state disclaimed any intention to
prosecute ministers for their preaching.
Here's a twist on the same-sex harassment issue: Several male deputy sheriffs in New Orleans
filed a same-sex harassment suit against the city, naming Tod Thedy, a 10-year supervisor of
the Orleans Parish Civil Sheriff's Office, as the harasser. Unfortunately, New Orleans is in the
5th Circuit, where the court of appeals has held that same-sex harassment suits are not
actionable. But the Supreme Court is considering whether to grant certiorari on a 5th Circuit
same-sex harassment case. Washington Times, March 31.
Sharon S., a female-to-male transsexual parent seeking to maintain joint custody with visitation
in J.L.S. v D.K.S., n/k/a/ S.D.S., 1997 WL 104514 (Mo.Ct.App. Mar. 11), told the St. Louis
Post Dispatch (April 7) that she would file a motion seeking reconsideration of the court's
decision to deny her joint custody and to require a new determination by the family court prior
to ordering visitation with her children. The trial judge who had previously awarded Sharon
joint custody and ordered visitation after a one-year period has since been removed from the
bench by the voters, so a new hearing means starting at ground zero for Sharon.
Charlotte Patterson of the University of Virginia presented results of three new studies on
children raised by lesbian parents at a national meeting of the Society for Research on Child
Development. According to an April 4 Associated Press report, the studies found that children
born to lesbian couples using donor insemination are emotionally healthy and well-adjusted. The
studies found essentially no difference in adjustment and emotional health between the children
of lesbians and a control group of children born to heterosexual parents through natural
conception.
The Montana Supreme Court heard oral argument April 11 in Gryczan v. Montana, in which
a trial judge enjoined enforcement of the state's sodomy law against consenting adults whose
conduct takes place in private. Judge Jeffrey Sherlock wrote in his unpublished 1996 opinion,
"Since plaintiffs' activities do not harm anyone, it is hard to understand why anyone needs to
be concerned with what these people do it private or why anyone would want to deny them the
privacy to conduct their activities in a way that does not affect anyone else." Helena, Montana,
lawyer Holly Franz and Rosemary Daszkiewicz of the Northwest Women's Law Center in
Seattle, Washington, represent the plaintiffs. Washington Times, April 11.
In Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), the court established a historic precedent
that a Wisconsin school district's failure to protect a gay student from harassment raised Equal
Protection issues. After a trial determined that the school district was liable to Nabozny, the
defendant agreed to a large cash settlement. Honoring young Jamie Nabozny, whose agony led
to this lawsuit, the San Francisco Unified School District voted to award him an honorary high
school diploma, which was awarded April 10 at Lambda Legal Defense Fund's 7th Annual
Spring Reception and Dinner in San Francisco.
U.S. District Judge Gonzalez (S.D.Fla.) rejected a constitutional challenge to the state's
prostitution law brought by a plaintiff identified as "a former employee of the `most prestigious
and famous escort service in south Florida and the United States.'" Roe v. Butterworth, 1997
WL 144966 (March 10).
The Virginia Department of Motor Vehicles canceled a license plate that had been issued to a
lesbian couple, Alice Deighan and Scout, that said "2 Dykes." Another driver had complained
to the DMV that the plate was "offensive." The DMV's April 2 letter to the women said they
would have to remove the plate from their vehicle by May 2. The women plan to appeal.
Reported the Washington Blade (April 11): "The openly Gay deputy director of the California
Department of Motor Vehicles, Frank Ricchiazzi, said the guidelines at his department would
have prompted him to take the same position as that of the Virginia DMV" because Ricchiazzi
said that he sees the term "dyke" as "a derogatory term." Scout disputed this, asserting that the
DMV's were behind the times, and called the Virginia ruling "arbitrary" and "possibly
homophobic." A.S.L.
The District of Columbia Department of Human Rights and Minority Business Development has
found probable cause to believe that the Boy Scouts of America violated the District's Human
Rights Act by refusing to let two gay men become Scout leaders. In a report released March
28, the Department said: "There is no justifiable reason for respondents not to accept known
homosexuals as members of its organization. There is no documentation to support a theory that
the sexual preferences of adult or younger scouts has an impact on the young men with whom
they interact." This decision reversed an earlier ruling by the Department that the Boy Scouts
were a "distinctly private" organization beyond the reach of the Act. The Department has
decided that the Scouts are a "public accommodation." However, because the leadership
position for which one of the men applied was not a compensated position, the Department held
it could not proceed against the Scouts for employment discrimination. The case is now
referred to D.C.'s Human Rights commission for an adjudicatory hearing. Washington Blade,
April 4. * * * In another case attacking the Scouts' antigay policies, the ACLU of Illinois filed
suit in U.S. District Court in Chicago on April 10 against the City of Chicago, arguing that the
City was engaging in unlawful discrimination by sponsoring 25 Boy Scout troops that maintain
a policy against membership or leadership by openly gay people. ACLU staff attorney Roger
Leishman is litigating the case. Chicago Tribune, April 11.
The Montgomery County (Maryland) Board of Education voted to overrule Superintendent Paul
Vance and authorize the broadcast of a student-produced video debating the issue of same-sex
marriage over the school system's public cable TV channel, thus ending a hot local political
controversy. Washington Post, April 24.
A gay man who decided to protest unfair treatment of gays and lesbians by the federal
government by refusing to pay his federal income taxes was sentenced to a year in prison on
April 24 by U.S. District Magistrate Ronald Guzman (N.D.Ill.) Robert Mueller was found
guilty of three counts of failing to file tax returns in November, after testifying at trial that he
did not deny the charges of tax evasion but felt he was justified by unfair government treatment,
citing, for example, Social Security rules under which his domestic partner will not be entitled
to the same benefits received by legal spouses of heterosexual citizens. Chicago Tribune, April
25.
Following up on a December Los Angeles Police Commission hearing at which witnesses
testified about police harassment of gay bar patrons, openly-gay Commissioner Art Mattox
ordered the department to produce a study on police inspections of gay bars and restaurants,
which revealed (to nobody's surprise) that such establishments received disproportionate attention
from the LA Police. Gay establishments were twice as likely as non-gay establishments to
receive visits from Police inspectors, and there is anecdotal evidence suggesting that the
inspectors make arrests or issue citations for violations at gay bars that would draw no more than
a friendly verbal warning, if that, at non-gay businesses. (Another surprise?) Los Angeles
Times, April 2. A.S.L.
Legislative Notes
With Senate and House sponsors set to re-introduce the Employment Non-Discrimination Act,
a federal bill that would ban discrimination on the basis of sexual orientation by those employers
subject to the Civil Rights Act of 1964, President Bill Clinton met with the bill's sponsors on
April 24, and publicly renewed his support for the measure. Lead sponsors are Sen. Edward
Kennedy (D-Mass) and Rep. Barney Frank (D-Mass). A June 1996 Associated Press poll
showed 85% support by the public for "equal rights for homosexuals in job opportunities." A
poll released April 24 by Human Rights Campaign showed 68% support by the public for the
bill. Chicago Tribune, April 25.
California Assembly committees gave the go-ahead to three major gay rights bills on April 2.
One would allow same-sex couples to adopt children, overriding regulations proposed by Gov.
Wilson that would essentially exclude gay people from serving as adoptive or foster parents.
Another would grant limited rights to unmarried domestic partners, while a third would add an
express ban on sexual orientation discrimination to the state's Fair Employment and Housing
Code. While all three bills were given fair chances of passage in the Democrat-controlled
Assembly, their reception in the Senate was less certain, and all three seemed likely to be vetoed
by Gov. Wilson if they passed the legislature. Los Angeles Times, April 3.
The Illinois House voted April 24 against adopting a proposed gay rights law sponsored by its
only openly-gay member, Rep. Larry McKeon of Chicago. The bill, which failed on a 50-61
vote, would have banned discrimination in employment and housing on the basis of sexual
orientation. St. Louis Post Dispatch, April 25.
The Colorado House Judiciary Committee approved a measure that would add sexual orientation
to the state's hate crimes law.
Some folks in Charlotte, North Carolina, were angered by a recent production of Angels in
America by a local theater company that receives funding from the Arts and Science Council.
The Mecklenburg County Commission voted 5-4 on April 1 to end its $2.5 million annual
donation to the Council. Now all proposed arts projects seeking public funding in the county
will have to apply directly to the Commission. The debate leading up to the vote and its
aftermath produced an outpouring of rhetoric in the local press. Hoyle Martin, sponsor of the
resolution against the Council, objected to the depiction of homosexuality on the stage using
public funds. In addition to Angels, the theater company was scheduled to present Six Degrees
of Separation, another play featuring a gay character, shortly after the Commission's vote. N.Y.
Times, April 2. Andrew Reyes, a 30-year old Navy veteran with an accounting practice in
Charlotte, came out publicly to testify against the resolution, and announced April 21 that he
would run for election to the County Commission. Reyes would be the first openly-gay person
ever to run for the Commission.
International Notes
EGALE, a gay-rights group in Canada, reported that the Canadian Human Rights Tribunal ruled
April 10 in Moore & Akerstrom v. Treasury Board that an attempt by the government to comply
with an earlier Tribunal ruling regarding domestic partner benefits for same-sex partners of
government employees was inadequate. The government had attempted to set up a special
category for "same-sex partner relationships" that required applicants to publicly declare that
they are in a "homosexual relationship." The Tribunal said in its new ruling that the government
should comply by expanding the existing definition of spouse to omit the phrase "of the opposite
sex."
On April 16, legislators in the Australian state of Tasmania took a step toward ending the state's
law against consensual sodomy. The House of Assembly, the lower house of the legislature,
has voted in favor of repeal four times over the past five years, but repeal has consistently been
blocked by the upper house, the 19 member Legislative Council, until the April 16 vote, which
produced a narrow margin for repeal. Law enforcement officials in the state have taken the
position that a federal law intended to require Tasmania to come into line with the rest of
Australia had already rendered the law, which authorizes imprisonment for up to 21 years,
unenforceable. Reuters, April 16.
The Society for the Protection of Personal Rights, the Association for Civil Rights in Israel, and
the organization of Israel's Lesbian Feminist Community have jointly appealed to the Israel
Supreme Court against the Education Ministry's decision to block the broadcast of a
documentary about gay/lesbian/bisexual youth on the nation's educational TV channel.
According to an affidavit filed by the Minister of Education, Zevulun Hammer, the program
should not be shown because it "ignores a normative and moral approach that negates
homosexual behavior and regards it as a moral flaw." In other words, the present Likud-
coalition government, which places the Education Ministry in the hands of the Religious Parties,
will block the showing of any documentary about homosexuality that does not present
homosexuality as immoral." (Based on a translation of a story from Ha'Aretz transmitted via
Internet by the SPPR) A.S.L.
An international conference on "Homosexualities and Law: From
Decriminalization to Full Recognition," will be held in Paris on June 26 and 27, just before
EuroPride on June 28. The papers (two in English, the rest in French) will deal with France,
Europe, the U.S. and South Africa. For further information, contact the organizer, Daniel
Borrillo of the Universite de Paris X-Nanterre (borrillo@u-paris10.fr; fax: (33) (1) 40-97-47-73).
R.W.
Law School Admissions Council Studying Atmosphere in Law School for Gay/Lesbian Students
The Law School Admissions Council (LSAC) has undertaken a study of the atmosphere for gay
and lesbian law students. The survey form has been mailed to gay and lesbian student
organizations and to faculty members of the Association of American Law School's Section on
Gay and Lesbian Legal Issues. So far, more than 200 responses have been received. Any law
student readers of Law Notes who would like to complete a survey form should contact Jim
Vaseleck, LSAC, P.O. Box 40, Newtown, PA 18940; phone: 215-968-1140. A.S.L.
Professional Notes
The New York Law Journal accorded front page status to a report prepared by a subcommittee
of LeGaL's Professional Services Committee on the issue of bias in federal courts in the Second
Circuit. D. Pines, "Gay Lawyers' Group Seeks Second Circuit Bias Ban," NYLJ, 4/16/97, p.1.
The subcommittee, chaired by Toby Butterfield, included Robert Bacigalupi, Janice Grubin,
Mark Major, and Robin Merrill. The report was prepared in response to a request for input
from the Second Circuit Task Force on Gender, Racial and Ethnic Fairness. The Law Journal
made the full text of the report available on its web site for April 16.
A deluge of support for Utah lesbian attorney Jane Marquardt broke out after attorney Mark H.
Gould published a letter critical of the Utah Bar Journal for having profiled Marquardt as "a
credit to the profession" for her public service work. Utah Attorney General Jan Graham and
more than 100 other attorneys sent a joint letter to the Journal rejecting Gould's comment that
Marquardt's sexual orientation was contrary to Utah's "culture" of "family values and moral
behavior." Washington Blade, March 28.
Gay & Lesbian Advocates & Defenders, New England's public interest law firm dealing with
gay/les/bi/trans and HIV/AIDS legal issues, is seeking a full-time Executive Director.
Candidates should have substantial and successful fund-raising and public relations experience,
the ability to understand and articulate legal and policy issues, and the ability to engage diverse
communities. Non-profit fiscal and managerial skills are essential. Candidates must provide
the vision and leadership necessary to accomplish substantial organizational growth for this 19-
year-old, Boston-based organization. J.D. degree preferred. Resumes should be sent by May
9, 1997, to: Search Committee, GLAD, 2 Washington St., Suite 740, Boston MA 02112.
The HIV/AIDS Legal Services Alliance in Los Angeles County is accepting applications for a
full-time immigration attorney, to be based at the Immigration Legal Assistance Project of the
LA County Bar Association to provide legal services to immigrants living with HIV disease in
Los Angeles County. Three years immigration practice experience, graduation from an
accredited law school, demonstrated commitment to the HIV community, Spanish fluency, and
a valid driver's license and vehicle required. Salary range $40-45,000 depending on experience
plus full benefits. Cover letter and resume to: M. Mucha, PO Box 531968, Los Angeles CA
90053.
AIDS AND RELATED LEGAL NEWS BRIEFS
ACT-UP Loses Court Battle to Preserve Anonymous Testing in North Carolina
The North Carolina Supreme Court rejected an attempt by the state's ACT-UP chapter to prevent
the state's Commission for Health Services from adopting regulations that will end anonymous
HIV-testing in North Carolina. ACT-UP Triangle v. Commission for Health Services, 1997 WL
174304 (April 11). In an opinion by Justice Frye, the court upheld the Commission's exercise
of rulemaking authority and rejected a constitutional challenge to confidential HIV-testing with
name-reporting.
In Feb. 1992, the Commission promulgated a rule that would have discontinued anonymous
HIV-testing in the state effective September 1, 1994. ACT-UP sought to persuade the
Commission to change its mind through administrative procedures, but was unable to do so,
even though prior litigation secured it a hearing and managed to extract some documents from
the Commission through discovery. The Commission ultimately voted on Feb. 9, 1995, to
reaffirm its decision despite ACT-UP's intervention, and ACT-UP went back to the state court,
which denied its petition to prevent the Commission's action, but stayed the Commission's acting
pending appeal. The state Court of Appeals decided that judicial review was not available for
the Commission's refusal of ACT-UP's petition requesting a new rule authorizing anonymous
HIV-testing, but the Supreme Court granted ACT-UP's motion to stay that decision pending
appeal.
The Supreme Court held that the courts do have jurisdiction to review the Commission's
decision in this matter, but then applying the usual deferential standard of review for agency
actions, held that the Commission's decision would not be set aside unless the record lacked any
evidence to support it. The hearing record consisted of evidence introduced both by ACT-UP
and by state officials. ACT-UP argued that "the Commission's decision to eliminate anonymous
HIV testing was not based on substantial evidence and a careful consideration of the evidence
in the record, that the decision was politically motivated, and that the cutoff date for anonymous
testing was arbitrary." Without any explanation about what evidence supported the
Commission's finding, the Supreme Court held that the record contains "sufficient substantial
evidence to support the Commission's decision to eliminate anonymous testing in favor of
confidential testing."
Turning to ACT-UP's contention that confidential testing with name-reporting to public health
authorities violated due process rights of liberty and personal privacy, the court found that the
U.S. Supreme Court's precedents recognized an individual right of privacy in medical
information, but also recognized the necessity of allowing public health authorities to gather
medical information. The court pointed to Whalen v. Roe, 429 U.S. 589 (1977), in which the
Supreme Court upheld a state law requiring doctors to report to public health authorities when
they prescribed certain drugs for their patients. The North Carolina court found Whalen similar
to this case, in that the Supreme Court's decision to uphold the statute turned on the presence
of specific provisions protecting the confidentiality of the information. Justice Frye noted that
the HIV-related information in this case was protected by both civil and criminal penalties for
unauthorized disclosure.
"While arguments can be and have been made that the previous program of exempting HIV
testing from the reporting requirements is the better policy because of the stigma attached to this
particular disease," wrote Frye, "we do not find that the proposed confidential testing program
violates plaintiffs' privacy rights in their personal medical information." The court reached the
same conclusion under the state constitution, noting prior state decisions that had relied on
Whalen's reasoning. "We conclude that the statutory security provisions are adequate to protect
against potential unlawful disclosure which might otherwise render the confidential HIV testing
program constitutionally infirm." A.S.L.
Federal Court Holds ADA May Bar Refusal by Life Insurance Company to Deal With Sexual
Partner of HIV+ Person
In an unpublished decision dated March 21, U.S. Senior District Judge William Orrick ruled in
Cloutier v. Prudential Insurance Co., No. C-95-1166 WHO (N.D.Cal.), that the Prudential
Insurance Company's practice of not selling life insurance to anybody who is in a sexual
relationship with an HIV+ person may violate Title III of the Americans With Disabilities Act
and, derivatively, California's Unruh Civil Rights Act. Ruling on a motion for summary
judgment by Prudential, Orrick found that factual issues remained as to whether Prudential's
practice is protected by sec. 501(c) of the ADA.
Mark Cloutier applied for a $500,000 life insurance policy on Feb. 8, 1995. He signed a waiver
authorizing Prudential to examine his medical records. The medical record stated that Cloutier
"has safe sex through [a] partner [who] is HIV [-positive]" and that Cloutier "has had
persistently low CD-4 [white cell blood] count." It also revealed that Cloutier tested HIV-
negative. Cloutier believes his low CD-4 is attributable to a viral infection unrelated to any HIV
issues. Prudential sent Cloutier a letter on March 31, 1995, denying his application. Cloutier
then applied to New York Life Insurance Co., which, based on the same medical records, issued
him the policies for which he applied. Later in 1995, Cloutier did obtain a small life insurance
policy from Prudential through his employer's group benefit plan, which does not involve
individual underwriting.
Cloutier charged Prudential with a violation of California insurance laws, the California Unruh
Civil Rights Act (which bans discrimination based on disability by businesses), and Title III of
the ADA, which forbids disability discrimination by places of public accommodation. Cloutier
also asserted state law tort claims. Cloutier did not oppose Prudential's motion for summary
judgment on the tort and insurance law claims.
Prudential claimed that Cloutier lacked standing to invoke Title III, arguing that the "place of
public accommodation" provision referred only to physical access to Prudential's offices. Judge
Orrick rejected this narrow reading of the statute, noting that two prior decisions by courts of
the Central District of California had found that this provision should be given a broad
interpretation and that one of those cases, Kotev v. First Colony Life Ins. Co., 927 F.Supp. 1316
(C.D.Cal. 1996), specifically found coverage in a similar case where an insurance company
refused to issue insurance to the spouse of a person with HIV. In this case, as in Kotev, the
plaintiff relied on statutory language extending protection to somebody who suffers
discrimination "because of the known disability of an individual with whom the individual or
entity is known to have a relationship or association." Orrick casually notes without discussion
that Cloutier's "partner, who is HIV-positive, has a cognizable physical disability." (This last
is a point disputed in some other federal court decisions.)
Prudential next argued that its practice was sheltered by ADA sec. 501(c), which allows
underwriting decisions "that are based on or not inconsistent with State law" in subsection (c)(1);
this made relevant Cloutier's argument that Prudential's practice violates the California Unruh
Act. Cloutier also argued that Prudential's policy might be a "subterfuge" to evade the non-
discrimination requirements of Title III. Orrick quoted from a House Report on the ADA which
asserted that in order for an insurance company to benefit from the protection of 501(c), its
"underwriting and classification of risks [must] be based on sound actuarial principles or be
related to actual or reasonably anticipated experience."
Here is where Prudential fell down. During discovery prior to the motion, Prudential's
description of its internal decision-making process showed no reliance on any actuarial data or
other objective information tending to show how much riskier it was to insure the sexual partner
of an HIV+ person than to insure others to whom it routinely sells coverage. Although Judge
Orrick found initially that Prudential's practice did not appear to violate the Unruh Act, its
process might fail the subterfuge test, and a recent amendment of the Unruh Act provides that
any violation of the ADA could also be held to violate the Unruh Act.
Turning directly to the subterfuge issue, Orrick observed: "The mere fact that a particular
individual presents a greater risk does not compel the conclusion that the individual presents an
uninsurable risk. Common sense suggests that an insurer that confronts a heterogenous (sic)
pool of applicants merely consults actuarial tables to adjust its rates to account for varying levels
of risk presented by those applicants. Indeed, Prudential's practices typically conform with this
logic, as the company admits that it charges about 10 percent of its applicants a premium
commensurate with the additional risk that those applicants bring to its pool. Yet Prudential
offers no actuarial or other data to justify its outright rejection of plaintiff's policy application.
. . In response to Plaintiff's showing, Prudential must point to data, studies, or other information
relevant to its risk assessment in order to establish the absence of a dispute of material fact."
"Not only does the evidence suggest that Prudential did not base its decision on sound actuarial
data," wrote Orrick, "but the rejection of his application may not have accorded with reasonably
anticipated experience. Prudential's review of plaintiff's medical records could only have
revealed that plaintiff engaged in `safe sex' -- that is, protected sex -- with an HIV-positive
partner. Plaintiff's blood test results remained HIV-negative. Despite that fact, Prudential does
not offer any evidence that one has a heightened risk, let alone [an] uninsurable risk, of
contracting HIV by engaging in protected sex. Persons such as plaintiff, who took the initiative
to report the nature of his sexual activity to his doctor, could conceivable have a lower likelihood
of contracting the virus than someone who does not regularly see a doctor, does not seek
medical advice, and does not purport to take precautions before engaging in sexual activity."
Noting the apparent success of new protease inhibitors in extending the life of HIV+
individuals, Orrick commented, "If one can live many years after infection, such persons as
plaintiff hardly present uninsurable risks for a life insurance company. New York Life's
decision to issue plaintiff two individual policies in 1996, in spite of New York Life's full
knowledge of plaintiff's sexual activities, bolsters this conclusion."
Orrick found that the burden of establishing sound actuarial practice on this motion was on the
moving party, Prudential. "It defies the spirit of the ADA for the Court to accept Prudential's
proffer of vague explanations of the risks of HIV infection where the business of insurance
requires sound risk assessment practices. Because plaintiff has pointed to evidence revealing the
possibility of discriminatory denial of an insurance policy, Prudential can only prevail on
summary judgment by coming forward with actuarial or other data supporting its actions."
A.S.L.
1st Circuit Rules on Burden of Proof in ADA Cases
The U.S. Court of Appeals for the 1st Circuit has rejected a contention by the EEOC that in
ADA litigation the defendant always bears the burden of proving that the employee with a
disability poses a risk to others as an affirmative defense. In EEOC v. Amego, Inc., 1997 WL
151009 (April 7), affirming the district court, the court of appeals found that when the questions
of job qualifications and risk to others were intertwined, the burden of proof feel solely on the
plaintiff.
In this case, an employee of a non-profit institution caring for severely disabled people suffering
from autism, retardation and behavioral disorders was found by the employer to be incapable
of safely dispensing medication to clients, due to her own severe depression (as evidenced by
two recent suicide attempts through overdoses), and was discharged. In her subsequent ADA
suit, the district court found on summary judgment that the EEOC had not made a prima facie
case that the employee was "qualified," and EEOC argued on appeal that the burden was on the
employer to show that the employee was not qualified.
Rejecting this argument, the court said: "We hold that, in a Title I ADA case, it is the plaintiff's
burden to show that he or she can perform the essential functions of the job, and is therefore
`qualified.' Where those essential job functions necessarily implicate the safety of others,
plaintiff must demonstrate that she can perform those functions in a way that does not endanger
others. There may be other cases under Title I where the issue of direct threat is not tied to the
issue of essential job functions but is purely a matter of defense, on which the defendant would
bear the burden. This case does not raise or resolve issues of the role of `direct threat'
provisions under other parts of the ADA, such as the public accommodation title." Concluding
that the plaintiff's burden was not met, the court rejected the appeal. A.S.L.
Michigan Appeals Court Affirms Conviction for Knowing Exposure of Another to HIV
In People v. Jensen, 1997 WL 165872 (Mich.App., April 4), the court affirmed a jury
conviction and sentence of from 32 to 48 months imposed on Brenda Lee Jensen, an HIV+
woman, for engaging in sex with a man without disclosing her HIV-status to him. Jensen was
found to be HIV+ on Oct. 12, 1990. She was subsequently found to be legally incapacitated
by reason of mental deficiency by a probate court and committed to the guardianship of Robert
Wolf, operator of an adult foster care home. While under Wolf's guardianship, Jensen was
counselled that she was required by law to disclose her HIV status to any potential sexual
partner. (Mich.C.L. 333.5210; MSA 14.15(5210) makes a felony for a person who knows he
or she is HIV+ to engage in "sexual penetration" with another person without disclosing HIV
status.) In July 1994, Jensen was temporarily living in a motel and had sex on two occasions
with another tenant of the motel. When she returned to the foster home, she told Wolf that she
had sex and admitted that she had not disclosed her HIV-status to her partner. Wolf turned her
in to the police.
Surprisingly, the court's decision contains no discussion of Jensen's mental capacity and how
that factor might relate to her ability to commit the crime. The court rejected Jensen's attempt
to challenge the constitutionality of the statute, asserting that she had not preserved that issue
for appeal. Instead, the opinion focuses entirely on procedural objections to rulings by the trial
court which prevented Jensen from introducing evidence that she had been coerced into having
sex with the victim. The court of appeals upheld the evidentiary rulings, and opined that
Jensen's sentence was not "disproportionate" in light of the danger her misconduct presented to
society. A.S.L.
N.Y. Appellate Division Upholds Dismissal of AIDS Phobia Claim Against Public School
A unanimous panel of the N.Y. Appellate Division, 2nd Department, upheld the dismissal of
an AIDS phobia claim in Blair v. Elwood Union Free Public Schools, 1997 WL 169632 (April
7).
On May 30, 1992, 4-year old Matthew Blair found a hypodermic needle in a box of toys in a
classroom at the Harley Avenue School in Greenlawn while attending a pre-kindergarten
orientation program. Matthew immediately turned the syringe over to an adult, and there was
no indication that he stuck himself with it. There was also no evidence the syringe had ever
been used. The school principle turned it over to the police, who destroyed it without having
any test made to see whether it carried an infectious material. Matthew's mother, Donna Blair,
had him tested for HIV six and twelve months after the incident, with negative results.
Nonetheless, claiming that she and Matthew feared he would contract HIV and AIDS, Blair sued
the school district for negligent infliction of emotional distress. The trial court dismissed the
complaint.
Writing for the appellate division, Justice Bracken found that an action for AIDS phobia requires
that plaintiffs "establish (a) the actual or probable presence of HIV when the alleged exposure
occurred, and (b) that there was some injury, impact, or other plausible mode of transmission
whereby HIV contamination could with reasonable likelihood enter Matthew's bloodstream."
In the absence of these facts, "plaintiffs' claims are therefore by definition not genuine, and their
alleged fears are too remote, or speculative to sustain the complaint." A.S.L.
NY Appellate Division Finds Dentist Did Not Discriminate Against HIV+ Patient
A unanimous panel of the N.Y. Appellate Division, 2nd Department, ruled in Lasser v.
Rosa, 654 N.Y.S.2d 822 (March 10), that the State Division of Human Rights'
determination that a dentist discriminated against an HIV+ patient was not supported by
substantial evidence.
As recounted by the court, the record shows that the complainant revealed to Dr. Lasser that she
was HIV+. Lasser then performed an examination and determined that a molar had to be
extracted. Dr. Lasser did not perform molar extractions and offered to refer the patient to an
oral surgeon. Lasser offered referrals to dental clinics that specialized in treating HIV+
patients, but made no referral to an oral surgeon in his own medical group. Lasser also offered
to assist the complainant in finding a surgeon if she had difficulty. Dr. Lasser testified that the
oral surgeon in his group was "not there frequently." The patient charged Lasser with violation
of the N.Y. Human Rights Law, which forbids discrimination on the basis of disability by places
of public accommodation. The Law Judge for the Division of Human Rights determined that
the complainant could have been treated by the surgeon in Lasser's medical group, who the
judge characterized as "frequent[ing] the clinic," and decided that Lasser's decision to refer her
elsewhere was discriminatory.
Lasser appealed this determination. The 2nd Department granted his petition and annulled the
judgment, ruling that Lasser's dental office was not a place of public accommodation under the
Human Rights Law. The Division appealed that ruling, which was reversed by the Court of
Appeals in October 1996, and remanded to the 2nd Department for a determination whether the
Division's finding of discrimination was supported by substantial evidence.
On remand, the court found that the Law Judge had mischaracterized the testimony concerning
the availability of the oral surgeon in Lasser's medical group. Further, there was no evidence
on the record that the Division ever asked Lasser about whether he normally referred patients
to this surgeon. "Nor did counsel elicit any evidence concerning the precise nature of the
surgeon's relationship to the medical group, the extent of his practice there, and the manner in
which, if at all, he would treat patients seen by Dr. Lasser. Accordingly, there is no evidence
in the record supporting the ALJ's conclusion that the complainant could have been treated by
the oral surgeon." The court also found lacking from the record any substantial evidence that
Lasser refused to treat the complainant, as the complainant herself testified that Lasser, who did
not do molar extractions, told her to get back to him if there was a lengthy wait for services at
the clinics or if they could not take her. The entry in complainant's dental record stated:
"suggested alternative specialty clinics, [patient] to decide."
"The determination of the SDHR that Dr. Lasser's referrals were merely a pretext to mask a
refusal to treat the complainant is a conclusion which is unsupported by substantial evidence on
the record," wrote the court per curiam, again granting Lasser's petition and annulling the
determination of the Division. A.S.L.
Connecticut Court Finds Suit Against Blood Lab Is Not a Malpractice Claim
In Pascarelli v. Corning Clinical Laboratories, 1997 WL 155381 (Conn. Super. March 25), the
plaintiff claims to have suffered severe emotional distress from being falsely diagnosed HIV+
by the defendant. The defendant sought to have the case dismissed on the ground that plaintiff
did not file a "good faith" certificate as required by statutes governing malpractice actions.
Judge Moraghan decided that this case is not governed by the malpractice statute, opining that
the plaintiff was alleging ordinary negligence, thus not bringing into question a professional
standard of care that would require expert medical testimony.
However, Moraghan did agree with the defendant that plaintiff's allegations were insufficient
for the second part of his complaint, in which he asserted a willful violation of a statutory
provision requiring anybody performing HIV testing to refer positive test subjects for counseling.
Negligent failure to make such a referral does not violate the statute; the court found that
plaintiff's allegation that the failure to refer him was willful was merely conclusory, as plaintiff
had not alleged sufficient facts to support an argument for willfulness under the circumstances.
A.S.L.
Texas Appeals Court Affirms Gun Possession Conviction of Person With HIV
In Johnson v. State, 1997 WL 184335 (April 17) (not officially published), the Texas Court of
Appeals affirmed a conviction for unlawful possession of a firearm by a felon, enhanced by two
prior felony convictions, rejecting three points of error asserted by the defendant, Troy Johnson.
Johnson, who is HIV+, conceded that he was carrying a firearm outside his apartment. His
explanation is that he had just learned that a close friend had died of AIDS and, as a result of
the news, he became "fearful and panicky and just lost it," began drinking and took out his gun
intending to commit suicide. An officer found him wandering about carrying the gun, but
Johnson claims to have no memory of having left his apartment carrying his gun.
Johnson's first point of error was that the trial judge failed to charge the jury on the insanity
defense. Unfortunately, Johnson never raised this issue at trial, and the court of appeals held
that the trial court had no responsibility to raise the issue of mental competence sua sponte.
Second, Johnson claimed ineffective assistance of counsel, pointing out that his lawyer neither
raised the insanity defense nor objected to a jury instruction that voluntary intoxication is not a
defense. The court also rejected this argument, finding that Johnson's lawyer had conducted an
active defense and appeared to have made strategic decisions regarding these issues. Finally,
Johnson suggested that the gun-possession statute violated his right to Equal Protection, by
applying a presumption that all ex-felons should be barred from lawfully carrying firearms.
Again, the court found that this question had not been preserved for review. A.S.L.
Maryland District Courts Reject Carparts Precedent
Criticizing as wrongly decided the U.S. Court of Appeals for the 1st Circuit's decision in
Carparts Distribution Center v. Automotive Wholesalers' Ass'n, 37 F.3d 12 (1994), which held
that a multi-employer group health plan through which an individual obtained health insurance
could be sued under Title I of the ADA (the employment discrimination title), the Judge Smalkin
of the U.S. District Court in Maryland dismissed a complaint by Timothy Good against Blue
Cross and Blue Shield of Maryland, Inc., for refusing to cover a particular medical procedure.
Good, a person with AIDS, claimed that Blue Cross was discriminating against him because of
his disability. Judge Smalkin, disparaging the Carparts holding, stated that "Carparts essentially
renders the ADA's `safe harbor' for insurers, 42 U.S.C. sec. 12201(c), meaningless in most
cases, as the lion's share of health insurance in this country is connected with employment.
Congress is, obviously, presumed not to countermand one part of a statute with one of its sister
parts." Smalkin also found that Good had not "sufficiently stated a claim under the so-called
`subterfuge' theory." Surprisingly, Good appears not to have included an alternative cause of
action under Title III of ADA, which could apply to the insurer as a "public accommodation."
Good v. Blue Cross and Blue Shield of Maryland, Inc., 6 A.D. Cases (BNA) 779, 1996 WL
815373 (D.Md. Nov. 19, 1996). Shortly after the Good decision, U.S. District Judge Garbis
issued a similar ruling on an almost identical claim in Nearhood v. Freestate Health Plan, Inc.,
6 A.D. Cases (BNA) 737, 1997 WL 151545 (D.Md. Jan. 31, 1997). A.S.L.
Feres Doctrine Bars Torts Claims on Death of Service Member and Wife From AIDS
In L.J.B. v. United States, 1997 WL 162076 (E.D.La. April 2) (not officially reported), the
court held that the surviving minor child of a service member and his spouse, both of whom died
from AIDS traceable to a transfusion received by the service member, could not assert tort
claims against the government because of an exception to the Federal Tort Claims Act (FTCA)
known as the Feres Doctrine.
R.J.H., Jr., the service member, had emergency surgery aboard the U.S.S. Independence,
anchored at Jacksonville, Florida, in July 1983. He received 13 units of blood from the ship's
blood supply. When the military instituted mandatory HIV-testing in 1985, he discovered that
he was HIV+ and was transferred to a land-based assignment. In January 1988, R.J.H.'s wife
was also diagnosed as HIV+. R.J.H. remained on active duty until August 1988, then retired
on a military disability pension. His wife died from AIDS in 1995, and R.J.H. died in March
1996, leaving one child, then age 13. R.J.H.'s parents brought suit against the government on
behalf of their minor grandchild.
The Feres Doctrine was announced in Feres v. United States, 340 U.S. 135 (1950). The
Supreme Court held in Feres that the FTCA did not impose liability on the government for tort
claims "for injuries to servicemen where the injuries arise out of or are in the course of activity
incident to service." Courts have explained the rationale of the doctrine as avoiding judicial
second-guessing of military decision-making. In subsequent cases, courts have held that the
Feres Doctrine applies to medical malpractice claims, as well as to claims by civilians where
their injuries are derivative from injuries suffered by servicemembers while on active duty.
Judge Porteous found that the plaintiffs' attempts to distinguish binding 5th Circuit precedents
construing the Feres Doctrine were unavailing, and concluded that the court "must reluctantly
grant the motion of the government to dismiss this case for lack of subject matter jurisdiction."
A.S.L.
D.C. Human Rights Commission Awards More Than $400,000 in Damages in HIV
Discrimination Case
The District of Columbia Commission on Human Rights issued a ruling April 4 in Estate of John
Doe v. Howard University Hospital, No. 89-095-PA(N), on remand from Doe v. D.C. Comm'n
on Human Rights, 624 A.2d 440 (D.C. 1993), awarding more than $400,000 in damages and
attorney fees and expenses in an HIV discrimination matter.
John Doe was brought by ambulance to the hospital after a suicide attempt. From comments
he made, hospital staff decided he was gay and subjected him to an HIV test without his consent;
after he tested positive, hospital staff refused to admit him to a psychiatric ward. His HIV+
status was noted on his hospital chart without his knowledge or consent, as a result of which
both his HIV status and sexual orientation were revealed to his employer, a government defense
agency, when he signed a routine authorization for release of his medical records. Doe charged
disability and sexual orientation discrimination. In its initial decision, the Commission
determined that a major part of his case was barred by the statute of limitations; on appeal, the
D.C. Court of Appeals reversed this determination, and remanded for a determination of
damages and attorneys fees and expenses. Doe has died since the case was remanded, so
damages go to his estate.
The Commission's April 4 opinion is a substantial document, thoroughly discussing the grounds
for calculating damages in an HIV-related case, noting that some of the issues it was addressing
concerned questions of first impression. Ultimately, the Commission awarded $50,000 for
indignity and emotional and psychological distress because of non-consensual HIV testing,
$50,000 for indignity and emotional and psychological distress because of the denial of
psychiatric care, $8,920 for lost income, and $296,678.17 for attorney fees and litigation
expenses. The Commission also issued an injunction against Howard University Hospital,
barring the hospital from "administering non-consensual HIV tests on the basis of sexual
orientation," and assessed the hospital $3,192.15 to the Commission for hearing costs.
Daniel Bruner, then of Spiegel & McDiarmid, represented Doe in litigating the case until Bruner
joined the legal staff of the Whitman-Walker Clinic; subsequently, Doe's estate was represented
by Scott Strauss and Peter Hopkins, also of Spiegel & McDiarmid.
AIDS Law & Society Notes
President Clinton has appointed Sandy Thurman to be the new director of the Office of AIDS
Policy in the White House. Thurman is a member of the president's AIDS Advisory Panel,
served as executive director of AID Atlanta from 1988 to 1993, and as director of a task force
on child survival and development for the Carter Center from 1993 to 1996. AIDS advocacy
organizations were generally supportive of the appointment, in light of Thurman's background
in the AIDS movement, but a D.C. ACT-UP spokesperson was critical of Clinton's failure to
nominate a more prominent individual for the position. Associated Press, April 8.
North Dakota has become the first state to authorize confinement of people suspected of being
HIV+, according to an ACLU news advisory. On April 10, Governor Edward Schafer signed
a new law that gives judges the power to detain a person suspected of being HIV+ and ordering
the person to submit to a blood test. The law provides that anybody who believes that another
person has "significantly" exposed them to blood can get a court order confining that person for
up to five days during which the judge can rule on whether to order a blood test. The ACLU
is considering filing a constitutional challenge to the law.
Reacting to adverse testimony at a public hearing and a threat of an ACLU lawsuit, the
Commonwealth of Puerto Rico backed away from several proposed HIV policies, including a
requirement that HIV+ individuals give state health authorities a list of their sexual partners and
that doctors provide officials with lists of the names, addresses, phone and pager numbers of all
their patients. The proposed policies would also have authorized health officials to compel HIV-
testing of individuals suspected of being infected.
U.S. District Judge Terry R. Means ruled April 8 in American Airlines v. Metzler, No. 4:94-cv-
504-y (N.D.Tex.), reprinted in BNA Daily Lab. Rep. No. 71, 4/14/97, that sec. 503 of the
Rehabilitation Act, which requires federal contracts to have policies to employ and advance
persons with disabilities, does not prohibit disability discrimination or afford individuals a right
of action to sue for disability discrimination, at least as to cases filed before 1992 amendments
made substantive changes to the Rehabilitation Act. The ruling is probably of little practical
effect, since any business likely to have a federal contract large enough to subject itself to sec.
503 is probably covered by the ADA's non-discrimination requirements.
Ronald Flowers, a reasonably healthy HIV+ man who was denied heart bypass surgery by
George Washington University Medical Center, has filed a suit in U.S. District Court in D.C.,
alleging violations of the ADA Title III, section 504 of the Rehabilitation Act, and the D.C.
Human Rights Act. Flowers had the surgery at another D.C. hospital after being turned down
at GWUMC, and recovered fully. He is represented by Whitman-Walker Clinic Senior
Litigation Counsel Daniel Bruner and David M. Friedland of Beveridge & Diamond.
AIDS Policy & Law, April 18, reports that the City of Kokomo, Indiana, settled a federal lawsuit
brought by a waiter who lost his restaurant job after a police officer refused to be served by him
and disclosed his HIV status to his co-workers and employer. The suit claimed that the police
officer, acting under color of state law, had violated the John Doe plaintiff's constitutional rights
as well as a state law on HIV-disclosure. Under the settlement, John Doe gets $60,000 in
damages and the city agrees to begin proper training of its personnel about how to deal with
HIV-related information. Doe v. Kokomo, No. IP 96-0235-C-G/T (U.S.Dist.Ct., S.D. Indiana,
settlement announced March 18, 1997). A.S.L.
International AIDS Notes
The HIV/AIDS Unit of the Lawyers Collective, a public interest lawyers group in India,
announced an important victory in the High Court of Judicature at Bombay. Ruling April 3 in
Mr. MX of Bombay v. M/s ZY, Writ Petition No. 213 of 1995, the court, having previously
allowed the petitioner to proceed anonymously (reported as unprecedented in Indian
jurisprudence), ordered that the respondent company rescind its policy of excluding all HIV-
positive applicants or employees and judge applicants for employment based on their physical
fitness without reference to HIV-status. In addition, the court ordered re-employment of the
petitioner, who had been accepted for employment in 1993 pending a physical exam, and was
then excluded upon testing HIV+. The decision appears to have been based upon constitutional
principles, the court finding that it was not constitutionally permissible for the State to condemn
an HIV+ person to "certain economic death" due to AIDS. "If it means putting certain
economic burden on the State or public Corporations such as the Respondent Corporation, or
the society, they must bear the same in the larger public interest,<170) wrote Justices Tipnis
and Trivedi for the court, according to a summary provided by the Lawyers Collective, which
brought the suit on behalf of Mr. MX.
The South African Constitutional Court has ruled in favor of two prisoners who sought an order
against the Corrections Department requiring the Department to provide the new combination
therapies, based on a review of their individual medical situation. However, two other prisoners
who applied for similar relief were turned down. According to an Internet posting by an
attorney for the South African AIDS Law Project, the decision has proved controversial in South
Africa, where many people with AIDS outside of prison do not have access to new drugs.
A.S.L.
PUBLICATIONS NOTED
LESBIAN & GAY & RELATED LEGAL ISSUES:
Adler, Amy, What's Left? Hate Speech, Pornography, and the Problem for Artistic Expression,
84 Cal. L. Rev. 1499 (Dec. 1996).
Becker, Mary, Problems with the Privatization of Heterosexuality, 73 Denver U. L. Rev. 1169
(1996).
Becker, Susan J., Child Sexual Abuse Allegations Against a Lesbian or Gay Parent in a Custody
or Visitation Dispute: Battling the Overt and Insidious Bias of Experts and Judges, 74 Denver
U. L. Rev. 75 (1996).
Ertman, Martha M., Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell
Either, 73 Denver U. L. Rev. 1107 (1996).
Grant, Brenda, Homosexual Marriage and the Constitution, 12 S. African J. Hum. Rts. 568
(1996).
Mosikatsana, Tshepo L., Comment on the Adoption by K and B, Re, 12 S. African J. Hum. Rts.
582 (1996).
Mosikatsana, Tshepo L., The Definitional Exclusion of Gays and Lesbians from Family Status,
12 S. African J. Hum. Rts. 549 (1996).
Rivera-Sanchez, Milagros, How Far Is Too Far? The Line Between "Offensive" and "Indecent"
Speech, 49 Fed'l Communications L.J. 327 (February 1997).
Rubin, Susan A., and Laurence B. Alexander, Regulating Pornography: The Feminist Influence,
18 Communications & the Law No. 4, 73 (Dec. 1996).
Ruskola, Teemu, Minor Disregard: The Legal Construction of the Fantasy That Gay and Lesbian
Youth Do Not Exist, 8 Yale J. L. & Feminism 269 (1996).
Silver, Bradley, 'Til Deportation Do Us Part: The Extension of Spousal Recognition to Same-sex
Partnerships, 12 S. African J. Hum. Rts. 575 (1996).
Student Notes & Comments:
Klein, David J., Keeping Business Out of the Bedroom: Protecting Personal Privacy Interests
From the Retail World, 15 John Marshall J. Computer & Inf. L. 391 (Winter 1997).
Symposia:
Focus on Same-Sex Marriage, 12 S. African J. Hum. Rts. Part I (1996)(individual articles in
English noted above); Symposium on Telecommunications Regulation and Free Speech and
Access, 45 DePaul L. Rev. No. 4 (Summer 1996).
AIDS & RELATED LEGAL ISSUES:
Crites-Leoni, Abbie, and Angellee S. Chen, Money for Life: Regulating the Viatical Settlement
Industry, 18 J. Legal Med. 63 (March 1997).
Mann, Dr. Jonathan M., Human Rights and AIDS: The Future of the Pandemic, 30 John
Marshall L. Rev. 195 (Fall 1996).
Seage, George R. III, Kenneth H. Mayer, et al., HIV and Hepatitis B Infection and Risk
Behavior in Young Gay and Bisexual Men, 112 Pub. Health Rep. 158 (March/April 1997).
Zachary, Mary-Kathryn, Between a Rock and a Hard Place -- Disability Benefits and/or ADA
Relief, 48 Lab. L. J. 115 (March 1997).
Student Notes & Comments:
Grishkin, Jennifer, Knowingly Exposing Another to HIV, 106 Yale L.J. 1617 (March 1997).
Hill, Dede, Condom Availability Programs Belong in the Schools, Not in the Courts, 1996 Wis.
L. Rev. 1285.
Recent Cases, Constitutional Law -- Due Process, Right to Privacy, and Free Exercise -- First
Circuit Denies Parents a Constitutional Right to Prevent Children from Receiving School-
Sponsored AIDS Education, 110 Harv. L. Rev. 1179 (March 1997).
Specially Noted:
Sexual Ecology: AIDS and the Destiny of Gay Men, by Gabriel Rotello (Dutton, 1997), has been
described by Larry Kramer as a book that every gay man must read, and by Martin Duberman
as the most important book written about AIDS so far. Having read it, we agree that this is an
important book whose themes should be discussed throughout the gay and lesbian community.
Rotello provides a thoughtful discussion of how the AIDS epidemic happened and what steps he
believes the community must take if it is to be ended (in the absence of a medical cure). Some
of his statements will be controversial, and some may differ with some of his factual assertions
about how the community has responded and is responding to AIDS, but few would dispute that
the issues he raises are important and require serious debate.
EDITOR'S NOTE
All points of view expressed in Lesbian/Gay Law Notes are those of identified writers, and are
not official positions of the Lesbian and Gay Law Association of Greater New York. All
comments in Publications Noted are attributable to the Editor. Correspondence pertinent to
issues covered in Law Notes is welcome and will be published subject to editing. Please address
correspondence to the Editor or send by e-mail. A.S.L.